Citation Nr: 0638435
Decision Date: 12/11/06 Archive Date: 12/19/06
DOCKET NO. 05-13 768 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUES
1. Entitlement to service connection for left hip disorder.
2. Entitlement to service connection for left knee disorder.
3. Entitlement to service connection for left ankle
disorder.
4. Whether new and material evidence has been submitted to
reopen a claim for service connection for a burn scar on the
veteran's left scalp and face.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
S. M. Kreitlow, Associate Counsel
INTRODUCTION
The veteran had active military service from March 1942 to
May 1943.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a June 2004 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Atlanta, Georgia.
This case has been advanced on the docket due to the advanced
age of the veteran. 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R.
§ 20.900(c) (2006).
The issue of whether new and material evidence has been
submitted to reopen a claim for service connection for a burn
scar on the left scalp and face is addressed in the REMAND
portion of the decision below and is REMANDED to the RO via
the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. The veteran's degenerative changes of the left hip are
not related to his military service.
2. The medical evidence does not show that the veteran has a
current left ankle disorder.
3. The medical evidence does not show that the veteran has a
current left knee disorder.
CONCLUSIONS OF LAW
1. A left hip disorder was not incurred in or aggravate by
service. 38 U.S.C.A. §§ 1131, 1137, 5102, 5103, 5103A, 5107
(West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.303, 3.159,
3.303, 3.304, 3.307, 3.309 (2006).
2. A left knee disorder was not incurred in or aggravate by
service. 38 U.S.C.A. §§ 1131, 1137, 5102, 5103, 5103A, 5107
(West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.303, 3.159,
3.303, 3.304, 3.307, 3.309 (2006).
3. A left ankle disorder was not incurred in or aggravate by
service. 38 U.S.C.A. §§ 1131, 1137, 5102, 5103, 5103A, 5107
(West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.303, 3.159,
3.303, 3.304, 3.307, 3.309 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Notice and Assistance Requirements
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 and 5126 (West
2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and
3.326(a) (2006) describe VA's duties to notify and assist
claimants in substantiating a claim for VA benefits.
Upon receipt of a complete or substantially complete
application for a service-connection claim, 38 U.S.C.
§ 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the
information and the evidence presented with the claim and
notify the claimant and his or her representative, if any, of
what information and evidence not already provided, if any,
is necessary to substantiate, or will assist in
substantiating, each of the five elements of the claim
including notice that a disability rating and an effective
date for the award of benefits will be assigned if service
connection is awarded. 38 U.S.C.A. § 5103(a) (West 2002);
38 C.F.R. § 3.159(b) (2006); Quartuccio v. Principi, 16 Vet.
App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473
(2006).
Sufficient notice must inform the claimant (1) of any
information and evidence not of record that is necessary to
substantiate the claim; (2) of the information and evidence
that VA will seek to provide; (3) of the information and
evidence that the claimant is expected to provide; and (4)
that he or she should provide any evidence in his or her
possession that pertains to the claim. Notice should be
provided to a claimant before the initial unfavorable agency
of original jurisdiction (AOJ) decision on a claim.
38 C.F.R. § 3.159(b)(1) (2006); Pelegrini v. Principi, 18
Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet.
App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed.
Cir. 2006).
In the present case, notice was provided to the veteran in
March 2004, prior to the initial AOJ decision on his claims
for service connection. Although this notice was deficient
in that it failed to provide notice to the veteran of the
fourth Pelegrini II element, the Board finds that the failure
to provide such notice is nonprejudicial error. The veteran
was specifically notified in the March 2004 that he needed to
provide evidence showing continuity of his claimed conditions
in order to establish service connection, as well as the
general requirements for establishing service connection. He
was also told it was his responsibility to submit evidence to
support the claims. He responded twice in April 2004
identifying where he has received treatment for the claimed
conditions, indicating that he knew of VA's desire to obtain
information and evidence in support of his claims. Thus, the
veteran was afforded a meaningful opportunity to participate
effectively in the processing of his claims. Finally, he has
been given the regulations applicable to VA's duty to notify
and assist. In view of this, the Board finds that the
purposes behind VA's notice requirement have been satisfied,
and VA has satisfied its "duty to notify" the veteran.
The Board also notes that the veteran's appeal was certified
to the Board prior to the decision by the Court of Appeals
for Veterans Claims in Dingess v. Nicholson, 19 Vet. App. 473
(2006), and thus notice compliant thereto has not been
provided to the veteran. The Board finds, however, that the
veteran has not been prejudiced by VA's failure to provide
him notice that a disability rating and an effective date for
the award of benefits will be assigned if service connection
is awarded. Given the denial of the veteran's claims, any
questions as to a disability rating or effective date are
moot.
With respect to VA's duty to assist, the RO attempted to
obtain all medical records identified by the veteran.
Service medical records are in the claims file. VA
outpatient records are in the file for treatment from
February 1998 through March 2005. The veteran did not
identify any private medical treatment for the claimed
conditions. The veteran was notified in the rating decision
and Statement of the Case of what evidence the RO had
obtained and considered in rendering its decision. He has
not identified any additional information or evidence in
support of his claims despite being asked to provide evidence
of continuity in the March 2004 notice letter. VA is only
required to make reasonable efforts to obtain relevant
records that the veteran has adequately identified to VA.
38 U.S.C.A. § 5103A(b)(1) (West 2002). VA, therefore, has
made every reasonable effort to obtain all records relevant
to the veteran's claims.
The duty to assist also includes providing a medical
examination or obtaining a medical opinion when such is
necessary to make a decision on the claim. An examination or
opinion is necessary if the evidence of record: (A) contains
competent evidence that the claimant has a current
disability, or persistent or recurrent symptoms of
disability; (B) establishes that the claimant suffered an
event, injury or disease in service; and (C) indicates that
the claimed disability or symptoms may be associated with the
established event, injury, or disease in service or with
another service-connected disability, but (D) does not
contain sufficient medical evidence for the Secretary to make
a decision on the claim. 38 C.F.R. § 3.159(c)(4) (2006).
The veteran was not provided VA examinations in connection
with his service connection claims. However, examination was
not required on any of his claims because there is no
evidence that the veteran has the claimed condition, or, if
he does, that the currently diagnosed condition may be
associated with his military service. His service medical
records show no pertinent complaints or diagnoses and no
medical records showing a continuity of symptomatology were
provided to support his claims. See Maxson v. West, 12 Vet.
App. 453 (1999), aff'd, 230 F.3d 1330 (Fed.Cir. 2000)
(service incurrence may be rebutted by the absence of medical
treatment for the claimed condition for many years after
service). Since there is no evidence indicating that a
possible nexus, or relationship, exists between the claimed
conditions and the veteran's military service, VA was not
required to obtain an examination. 38 C.F.R.
§ 3.159(c)(4)(i)(C) (2006).
Thus, the Board finds that VA has satisfied its duties to
inform and assist the veteran at every stage of this case.
Additional efforts to assist or notify him would serve no
useful purpose. Therefore, he will not be prejudiced as a
result of the Board proceeding to the merits of his claims.
II. Analysis
Service connection means that the facts establish that a
particular injury or disease resulting in disability was
incurred in the line of duty in the active military service
or, if pre-existing such service, was aggravated during
service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §
3.303(a) (2006). In order to prevail on the issue of service
connection there must be medical evidence of a current
disability; medical evidence, or in certain circumstances,
lay evidence of in-service occurrence or aggravation of a
disease or injury; and medical evidence of a nexus between an
in-service injury or disease and the current disability. See
Hickson v. West, 12 Vet. App. 247, 253 (1999).
Thus, in order to establish service connection, the evidence
must first show that the veteran has a current disability.
The current VA treatment records are silent for any treatment
for or complaints specifically related to the veteran's left
knee or ankle. Furthermore they do not show any diagnosis of
any disability in these joints.
In July 2003 the veteran was seen for complaints of left hip
pain and low back pain radiating into the left lower
extremity. Physical examination revealed tenderness of the
sacroiliac joint and the left hip. X-rays taken of the left
hip showed mild degenerative changes. The treatment records
also show that the veteran is being followed by the Neurology
Clinic for an essential tremor which started in his neck and
has spread to his upper and lower extremities. However,
there is no indication that the veteran is referring to this
problem as the basis of his claim for service connection.
The veteran has not stated that his left lower extremity
problems are related to the essential tremors and the
evidence shows that this condition only began affecting his
lower extremities in 2003.
Thus, the evidence shows that the veteran currently has
degenerative changes in his left hip, but fails to establish
that he currently has disabilities in his left knee and left
ankle. The radiation of the low back pain into his left
lower extremity is not a disability of the left lower
extremity but is related to his low back disorder, for which
he has not claimed service connection. The Board finds that
the veteran only has a current disability in his left hip,
and not in his left knee or left ankle. Not finding any
medical evidence of current disabilities relating to his left
knee and left ankle, the Board finds that the preponderance
of the evidence is against the veteran's claims for service
connection for left knee and left ankle disorders. The
preponderance of the evidence being against these claims, the
benefit of the doubt doctrine does not apply, and the
veteran's claims must be denied.
As for the veteran's left hip disorder, the Board finds that
the preponderance of the evidence is also against finding
entitlement to service connection for this disorder.
Although the veteran has a current left hip disability, there
is no evidence that the veteran incurred any injury to the
left hip in service like he has contended. The service
medical records are silent for any complaint of or treatment
for an injury of the veteran's left hip. Furthermore, 60
years separate the veteran's discharge from service and
evidence of a current left hip disability. The first post-
service evidence of any left hip disorder is from July 2003.
Thus, the veteran's allegation as to continuity of
symptomatology, standing alone, is not plausible in light of
the absence of continuous symptomatology in the medical
evidence of record. See McManaway v. West, 13 Vet. App. 60,
66-67 (1999).
The medical evidence of record fails to show any in-service
incurrence of an injury or disease related to the veteran's
left hip or that there has been a continuity of
symptomatology to establish chronicity of the veteran's
current left hip disorder since service. Thus, the
preponderance of the evidence is against finding a nexus
between the veteran's current left hip disorder and his
military service. The preponderance of the evidence being
against the veteran's claim, the benefit of the doubt
doctrine is not applicable, and his claim must be denied.
For the foregoing reasons, the Board finds that the veteran's
appeal for service connection for disorders of the left hip,
left knee and left ankle is denied.
ORDER
Entitlement to service connection for left hip disorder is
denied.
Entitlement to service connection for left knee disorder is
denied.
Entitlement to service connection for left ankle disorder is
denied.
REMAND
The Board finds that the veteran's claim to reopen for
service connection for burn scars of the scalp and face must
be remanded for additional notice pursuant to Kent v.
Nicholson, 20 Vet. App. 1 (2006), which established
additional requirements with respect to the content of notice
for reopening claims. The Court held that the VCAA requires
VA to look at the bases for the denial in the prior decision
and to respond with a notice letter that describes what
evidence and information would be necessary to substantiate
that element or elements required to establish service
connection that were found insufficient in the previous
denial. The Court further held that the failure to provide
notice of what constitutes material evidence in this context
would generally be the type of error that has the natural
effect of producing prejudice because it would constitute a
failure to provide a claimant notice of a key element of what
it takes to substantiate a claim to reopen.
The March 2004 notice letter provided to the veteran fails to
provide the detailed notice required by the decision in Kent.
Thus remand is warranted.
Accordingly, the case is REMANDED for the following action:
1. The veteran should be advised, based on
the last final denial of his claim for
service connection for the burn scar on the
scalp and face, of the specific information
and evidence not of record (1) that is
necessary to reopen his claim; (2) that VA
will seek to obtain; and (3) that the
veteran is expected to provide. The veteran
should also be advised to provide any
evidence in his possession that pertains to
the claim. In addition, the veteran should
be informed that a disability rating and an
effective date for the award of benefits
will be assigned if service connection is
awarded.
2. Then, after ensuring that any actions
needed to ensure VA's duty to assist and
notice obligations are accomplished,
readjudicate the claim. If such action does
not resolve the claim, a Supplemental
Statement of the Case should be issued to
the veteran and his representative. An
appropriate period of time should be allowed
for response. Thereafter, this claim should
be returned to this Board for further
appellate review, if in order.
The veteran has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
______________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs